Filing 8

REPORT AND RECOMMENDATION re 1 Complaint filed by GBEKE MICHAEL AWALA : It is recommended Plaintiff's 1 complaint be DISMISSED as frivolous. Signed by MAGISTRATE JUDGE ALLAN KORNBLUM on 4/8/2009. Internal deadline for referral to district judge if objections are not filed earlier: 5/6/2009. (jws)

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Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION GBEKE MICHAEL AWALA, Plaintiff, vs. CASE NO. 1:07CV239-MP/AK JUSTICE QUINCE, et al, Defendants. / REPORT AND RECOMMENDATION Plaintiff brings this cause pursuant to 42 U.S.C. 1983 against the justices of the Florida Supreme Court and others for a delay in issuing his birth certificate for which he seeks $70 million in damages and a special ceremony to be performed by Governor Crist. (Doc. 1). A court may dismiss a case proceeding in forma pauperis if the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. 1915A. Pro se complaints are to be held to a less stringent standard than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986), citing Haines v. Kerner, 404 U.S. 519, 520-1, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972). However, a plaintiff is still required to "set forth factual allegations, either direct or inferential, Page 2 of 3 respecting each material element necessary to sustain recovery under some actionable legal theory." Worst v. Hart, 1995 WL 431357, *2 (N.D. Fla. 1995). It cannot be assumed that a Plaintiff will prove facts which have not been alleged. Quality Foods de Centro America, 711 F.2d at 995, citing Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S. Ct. 897, 902, 74 L. Ed. 2d 723 (1983). Hence, even though the pleading standard for a pro se complaint is quite liberal, "bald assertions and conclusions of law will not suffice." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). Additionally, the court's duty to construe a plaintiff's complaint liberally is not the equivalent of a duty to rewrite it. Peterson v. Atlanta Housing Auth., 998 F.2d 904, 912 (11th Cir. 1993). The Court is required to dismiss a complaint at any time if it is determined to be frivolous. 28 U.S.C. 1915(e)(2)(B)(I). Typically, a court should serve the complaint and have benefit of the defendant's response before making such a determination, but there are compelling reasons for immediately dismissing frivolous suits since they unduly burden the courts, obscure meritorious claims, and require innocent parties to expend significant resources in their defense. Williams v. Secretary for the Department of Corrections, 131 Fed. Appx. 682, 686 (11th Cir. 2005). Dismissal prior to service is also appropriate when the Court determines from the face of the complaint that the factual allegations are clearly baseless or that the legal theories are indisputably meritless. Williams, supra; Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). This suit is frivolous. No. 1:07cv239-MP/AK Page 3 of 3 In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's complaint, doc. 1, be DISMISSED as frivolous. IN CHAMBERS at Gainesville, Florida, this 8th day of April, 2009. s/ A. KORNBLUM ALLAN KORNBLUM UNITED STATES MAGISTRATE JUDGE NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations. No. 1:07cv239-MP/AK

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